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Could the 1st August deadline "force" a mass return to work?

As part of his speech delivered on 17th July, the Prime Minister, Boris Johnson, announced changes to the guidance for working from home after 1st August. Some people may feel anxious about whether it is safe to go back to work and they may also worry about bridging any gaps in childcare. Can employers force employees to return to work and what are the obligations for both sides?

The law as it currently stands advises everyone who can work from home should continue to do so. But, from 1st August, employers will be given more discretion as to whether or not they allow their employees to continue working from home (where possible) or whether they require employees to return to the workplace as long as it is safe to do so.

In cases where an employee’s work cannot be done without a return to the workplace, employers have been advised to speak to their employees about any concerns, as well as any steps they may need to take to ensure safety is adhered to. They are also advised to ensure they stick to new guidelines if possible, including:

●     Observing the "1m plus" rule of social distancing

●     Introducing one-way systems to minimise contact

●     Frequent cleaning of objects and communal areas

●     In shops, storing returned items for 72 hours before returning them to the sales floor

●     Table service only in indoor pubs and restaurants

●     Venues expected to collect customers' contact details for the NHS Test and Trace system and to retain them for a limited period (probably 21 days)

If employees feel that these measures are not being implemented and that as a consequence the safety of employees is being put at risk, they are urged to contact their local authority, who may then step in and force the employer to take necessary safety precautions.

With regard to being forced to return to work - this has been a question asked by many for a long time. The earlier employers engage and communicate with employees the better as it may help to put minds at rest and resolve concerns that some employees may have. Whilst an employer may be entitled not to pay people who refuse to turn up to work without good reason, employers need to be extremely careful. The circumstances in individual workplaces will vary enormously so that each case where an employee resists a request to return to work will hinge on its particular facts. Employers are advised to seek legal advice before implementing any disciplinary action or dismissal.

Of course, where people fall into the vulnerable category, employers must be particularly careful. Whilst from 1st August, those who were shielding will no longer be required to do so, there could be some anxieties about returning to work so soon after being in isolation for so long.

For those refusing to return to work due to childcare issues, the Prime Minister advised that if schools are not open and workers cannot get childcare, employers should not expect staff to return. While this statement by itself will probably not provide any legal protection if an employee with childcare issues refuses to go to work and is not in a job in which they can work from home, Mr Johnson said parents and guardians who are unable to return "must be defended and protected on that basis".

If you would like some advice relating to the safe return of your staff, or you are an employee concerned about going back to work, contact the Employment Team at Downs Solicitors to see how we can help.

Posted on 22/07/2020 by Nicola O'Dwyer

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